Its just a bit of gossip......

Every workplace has a degree of workplace banter and gossip and it is practically impossible for an employer to stop it however, an employer does need to be aware that even where an employee actively participates in banter, they can find the banter or gossip to be offensive.

For example in the case of Thomas Sanderson blinds v English, the employee was a straight male but because he lived in Brighton and had gone to a boarding school, he was teased about being gay. He did participate in the banter himself however, he finally lodged a complaint in relation to an article that was written about him and which was seen by his family.

He subsequently resigned and claimed harassment on the grounds of sexual orientation. The Employment Appeal Tribunal found that he had participated in the banter and innuendo, it could not constitute harassment however, the one article which had clearly offended him was harassment and his claim was therefore successful.

Similarly, in another case, a female employee was in a relationship with a work colleague but was seen kissing another colleague at the works Christmas party and then going in to his hotel room.

A short while later the employee discovered that she was pregnant and informed her managing partner. In turn he informed the HR manager who then started gossiping with other members of staff and speculating as to who the father might be.

The employee was upset and raised a grievance and also asked to move to a different office temporarily. Her request was refused and her grievance was not dealt with. She then resigned and claimed constructive dismissal and sex discrimination.

The spreading of gossip about the identity of the child's father was held to have constituted sex discrimination and harassment. Also, the refusal to let her work at another office also amounted to sex discrimination.

Employers must ensure that they deal with inappropriate banter and gossip by not only speaking to those involved, but also taking disciplinary action where necessary. Employees must ensure that they have a clear policy of equal opportunities and harassment and that it is readily communicated to staff through appropriate training. Failure to do so may result in the employer being open for claims against them in relation to discrimination or unlawful victimisation.

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Flexible working has always caused employers a degree of difficulty.

Initially the right to request flexible working was introduced in April 2003 but was then extended to other carers in 2007. It had been planned that in April of this year, the right to request flexible working would be extended to parents of children aged 18 or under however, the government has announced that it will not introduce the change.

The government has however committed to extend the right to all employees and as such has now launched a consultation on implementing this pledge.

It is proposed that the right to request flexible working you will be extended to all employees, regardless of their caring responsibilities and it is aimed that a consultation paper will be published later this year to consider the extension.

The government are not proposing to change the requirements of being eligible to request flexible working and the existing eight business grounds on which an employer can refuse requests will also remain unchanged.

What the government does propose however is to replace the current statutory process of considering flexible working request with a simple duty on employers to consider such requests "reasonably". It is envisaged that a statutory code of practice will be introduced outlining what reasonable consideration would involve.

The consultation period ends on 8 August 2011 and if employers want to have their say, now is the time to do so.

The Department for Business Innovation Skills has launched a new consultation document entitled consultation modern workplaces and there are four key issues that are being looked at.

These include flexible parental leave which will retain 18 weeks maternity leave for mothers but will then reclassify the remaining maternity leave as "parental leave" and will mean that the leave can be shared by the mother or father or both. Again most of it will be paid however the consultation will also cover whether employers and employees that agree for parental leave to be taken in chunks or on a part-time basis.

There are three other points which are also going to be looked at which include the extending the right to request that are working to all employees, the provision for amending the working Time regulations to allow employees to carry over untaken holiday in to subsequent years if they lose the chance to take paid holiday because of sickness absence or maternity bleak parental leave.

There is also a consultation involving whether a employment tribunal has a duty to require employers to conduct a pay audit if they have been found guilty of breaching equal pay legislation. The consultation will close on all four points on 8 August 2011.

The government has recently published an independent review of the sickness absence system. It will explore the current sickness absence system and how it could be changed to help people stay in work as well as how the overall cost of the system can be reduced.

One proposal is to place an obligation on employers to take out income protection insurance rather than the payment of statutory sick pay. This would mean that insurers will become involved at an early stage and may be able to provide support to help get employees back to work.

The current Dutch system where employers have to take full responsibility for sick employees, including finding the alternative jobs if they can not get them back to working a current role, is also being considered.

Employers have the right to participate in the review, the results of which will be reported in the autumn of this year.

Super-injunctions in the Employment Tribunal?

With Ryan Giggs being the most recent celebrity to have been exposed in the super injunction scandal, and increasing public scrutiny over such injunctions, employers must be aware that there are certain criteria which they too can use to have a degree of anonymity within the employment tribunal.

In a recent ruling by the Central London Tribunal, the identity of a both parties in a case involving a top TV chef, reportedly facing a sex discrimination claim from an ex employee, the TV chef has managed to secure a restricted reporting order until the substantive merits of the case have been heard.

This means that the identity of the parties will not be made public until at least a prehearing review which is to be held in July however, the chef's representatives are likely to argue a right to a private life and so the restrictions may continue.

A Restrictive Reporting Order (RRO) cannot be granted in all cases. Usually they are only granted in those involving allegations of sexual misconduct or disability discrimination cases where there is evidence of a personal nature.

They can on some occasions also be granted outside of these areas. For example in some cases involving transsexuals where there has been no sexual misconduct but there is a claim for sex discrimination, the tribunal's have ordered RRO’s on the basis that if the claimant’s were forced to reveal their identity they could be deterred from enforcing their European law right not to suffer discrimination.

Unlike super injunctions, which have to be applied for in England ad Scotland, something which Ryan Giggs found out the hard way, an RRO will prevent the publication or broadcast in Great Britain of any matter that may identify either the person making the allegation of sexual misconduct, the person affected by the allegation and in disability cases, the claimant or any other person named in the order. Ryan Giggs failed to take out an injunction for Scotland and so it is thought that the majority of the links relating to his identity came from there.

The name of an employer can also be withheld to prevent identification of the person affected by the allegation. Any breach of an RRO is a criminal offence and is punishable by a fine on conviction of up to £5000.

The main difference with an RRO and a super injunction is that an RRO will only remain in force until liability and remedy have been determined by a tribunal. Once a judgement has been sent to the parties the RRO is lifted and the information is public knowledge.

Although not as powerful as the super junction, an RRO may be useful to protect an employers identity and position in certain circumstances.

When Personal Becomes Public

Hotmail, Yahoo, Facebook, Twitter, MySpace and many other e-mail and social networking sites are often a headache for employers. Employees are entitled to a private life but there are occasions when an employees personal email or posting, even when done outside of working hours and from home, can be actionable by the employer.

In a recent case, Gosden v Lifeline Project Ltd (LPL), Mr Gosden worked for LPL as a Prison Drug worker. He forwarded an email from home one weekend to a co worker within the prison service who in turned then forwarded it on to someone else within the Prison service. The email contained racist and sexist comments and images containing nudity.

The prison service excluded Mr Gosden from all of its prisons in Yorkshire and Humberside and LPL dismissed Mr Gosden on the grounds that he breached the companies equal opportunities policy and had damaged the company's reputation and its relationship with the prison service.

The Tribunal found the dismissal to be fair. The email was offensive and was sent to LPLs biggest clients and even though the email had been sent in Mr Gosden’s own time and from his own email, the email was a chain e-mail and so therefore, the tribunal made it clear that it was intended to be forwarded to others. Private correspondence intended for Mr Yates's eyes only, may well have attracted privacy.

Again it is yet another example as to how employers need to ensure that any e-mail and Internet policy and disciplinary policy are clear and include reference to situations where even a personal e-mail may not be so personal if it comes into the public domain and has the potential of bringing the employer into disrepute. Equally any offensive comments on social networking sites about co workers could be classed as harassment.